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Malcolm Baker

Latest summary on Malcolm Baker tribunal hearing

Malcolm Baker

 

Malcolm Bakers hearing was lost on the 1st of February 2018,the Mental Health review tribunal determine that Malcolm should continue to be detained at Long Bay Prison hospital.  Placing a halt on a series of three previous victories in 2010,2015 and 2016,whereby MHRT found no justification for continuing Malcolm’s forced medication. Given Malcolm’s previous record of non-violent behaviour, the lack of consensus regarding his mental diagnosis, and the absence of any evidence that he was a threat to other inmates, it was surprising, if not completely outrageous, that the MHRT arrived at the decision that it did.

During the hearing, Malcolm was represented and advocated solely by the Justice

action team. The tribunal allocated time for Justice Action to make Malcolm’s case, cross examine health authorities and suggest viable alternate treatment options. Two main legal arguments were presented to the tribunal.

  1. The requirements for involuntary admission, detention and treatment under s 14 of the Mental Health Act 2007 were not met.

Malcolm’s health debate has been disputed for a long period of time. The two most recent medical certificates presented before the Tribunal did not provide a consistent diagnosis. However, Justice Actions main contention was that there was a failure to establish a causal relationship between Malcolm’s mental illness and his two recent assaults. Section 14 of the Mental Health Act 2007 States that there must be ‘reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm’. On one of the medical certificates, it was stated that Malcolm had threatened to harm others. A request was made on the 24th of January asking Justice Health to provide evidence of this. However, the request was ignored and no evidence was provided.

  1. There had been a breach of the Principles for Care and Treatment of Mentally Ill Persons under s 68 of the Mental Health Act 2007.

Requirements under section 68 embrace that people with mental illnesses ‘should receive the best possible care and treatment, the prescription of medicine should meet the health needs of the person and not as a punishment or for the convenience of others.’. In particular, Justice Action drew attention to the side effects of the medication. It was reaffirmed that Malcolm was in blatant opposition to the treatment that he was receiving. Yet, his alleged failure to meaningfully engage with medical practitioners formed the basis of Justice Health’s recommendation that Malcolm should remain at Long Bay Prison Hospital for several more months to ensure that the medication had any “real effect”

Following the last hearing with the mental health review tribunal on the 1st of February 2018 to which ruled that Malcolm was to continue to forcibly be medicated against his will, Justice Action has consistently engaged in the lobbying of the 12 leading legal and mental health organisations for support for Malcolm’s case. Also maintaining regular contact with Malcolm for updates on his situation. Next hearing with Mental Health Review Tribunal to consider forensic Compulsory Treatment Order scheduled Thursday 19th April 2018 at 12.45pm, at Long Bay Hospital.

Request to Return to Nowra - Still No Action Despite Victory: November 2016

Another win for Malcolm Baker on the 24th July 2016, before the Mental Health Review Tribunal, supported by barrister Ben Fogarty, psychiatrist Yola Lucire and Justice Action team. Despite having defended against and winning the case against forced medication over a year ago, the authorities said the medication would stop him annoying people and make him less vocal. It was illegal, and made him sick. The Mental Health Review Tribunal sat in Long Bay Hospital and found that Malcolm Baker did not pose a serious risk of harm to himself or others, thus there was no reason to hold him in the mental health facility.

Progress has since been made to begin to transition Malcolm Baker back into a correctional facility in his place of classification. At present he is being held at Silverwater Correctional Centre in Darcy 2, a transitional pod of the Metropolitan Remand and Reception Centre (MRRC). According to NSW Justice’s website, ‘Most inmates at the MRRC leave the centre within the first few months of their arrival. They may obtain bail and are released or they are classified and transferred to their centre of classification.’

The situation must be monitored to ensure he is returned to his place of classification. According to the Serious Offenders Review Council, he should remain classified as A2 at the South Coast Correctional Centre. Transition has not always been prompt in the past. Prior to the MHRT hearing Malcolm Baker was held in the mental health pod at the MRRC for 15 months where he was set up to fail by being placed in an unsettling environment with no access to prison employment, education and no chance to create stable and meaningful relationships.

It has been nearly four months since and no action has been taken by the responsible authorities to transfer Mr Baker to his place of classification where he wishes to obtain access to a prison job, education and engage in real relationships with fellow inmates. At the moment, Mr Baker is still being held in a mental health pod at the MRRC. 

Prisoner Malcolm Baker abused by Health Authorities: Report on Medical Watchdogs Failure

In regard to the unjust treatment Mr Baker received throughout his years in a corrective facility and in an attempt to get him transferred to his desired place of classification where he could get access to a job, education and engage in real relationships with other people, our team has constructed a report highlighting the efforts we have made in contacting and informing the responsible authorities of the situation after the Tribunal decision on the 24th of July 2016 has made it clear that he was unlawfully forced medicated. However, despite our persistent attempts, it is unfortunate to report that no discerning response has been received from any of the responsible authorities. 

Background

Justice Action has followed up the case of Malcolm Baker since the Mental Health Tribunal ruling. This decision successfully exposed the concern of sustained abuse Mr Baker has endured, as a subject of forced injections at Long Bay Prison Hospital.  Their failure to respond to our efforts in reaching out demonstrates an evasion of their responsibility to prevent abuse of power within the criminal justice system. This report aims to highlight those responsible authorities whose negligence has clearly been endemic to prison health culture.

Justice Health at Long Bay Hospital has involuntarily administered antipsychotic medication on the grounds that Malcolm Baker suffered from mental illness, which is repeatedly proved otherwise, resulting in him being transferred back to and from the hospital. This abuse continued over 24 years until the Mental Health Tribunal, on the 24th of July, ruled that this was clearly wrong and unjustified. The Tribunal declared that the mental illness diagnosis was unfounded on three separate occasions and concluded that there was no explanation for the forced medication. Malcolm Baker has also stated that he is stable and comfortable, to which witnesses have agreed, and there has been no accusations being made that Malcolm Baker self-harmed or attacked other people.

Despite the recommendations made in the first two Tribunal decisions, Mr Baker was transferred back to Long Bay Hospital on the 6th of July 2016, where he was again subjected to forced medication. Mr Baker is currently being held in the mental health pod of the Metropolitan Remand and Reception Centre (MRRC) and still awaits return to South Coast Correctional Centre, Nowra (SCCC) where he can gain access to a job, educational courses and has the opportunity to develop friendships.

Malcolm Baker’s case demonstrates the need to reform the delivery of Justice Health services. Administering forced medication for unusual or critical prisoners for the purpose of easy management is a blatant abuse of power that must be confronted. Despite this illegal system of management, this approach is increasingly adopted within prisons with Health Department support. In an attempt to discourage such attitude towards prisoners, Justice Action have initiated discussions with the following authorities in a series of emails dated from the 8th of August:

  1. Justice Health
  2. Justice Health and Forensic Mental Health Network Board
  3. Community Reference Group
  4. Mental Health Advocacy Service
  5. Corrective Services NSW

None of these authorities have responded seriously to the issues despite this challenge. The fact that they can ignore us and carry on as usual highlights the powerlessness of prisoners and the lack of legal recourse to gross abuses that are clearly present in the system. It is clear that the Hippocratic Oath “Do no harm” is not followed in our prisons, as prisoners state they are more fearful of doctors than guards. Mr Baker’s case reflects a failure of proper healthcare delivery in the prison system, arising from lack of proper care and a subsequent denial of responsibility by public authorities for the improper diagnoses.

Our initial report on this matter can be found here.

 Justice Health: Gary Forrest – Chief Executive of the Justice Health and Forensic Mental Health Network

In a series of emails dated 18th August to 6th September, Justice Action and Mr Forrest looked to develop a relationship through which issues concerning their culture could be formally discussed. These issues included the case of Malcolm Baker, quality control in public health, Justice Action’s membership in the Community Reference Group (CRG), and prisoner representation on the Justice Health board.  Despite initially demonstrating a willingness to develop this relationship, Mr Forrest declined to meet, citing satisfaction with the Network’s progress on the issues we highlighted and the lack of desire to expand their community representative base.

Mr Forrest’s unwillingness to engage with the concerns raised by Justice Action reflects poorly on the Health Network, which serves as another clear example of the evasion of responsibility by public officials for Mr Baker’s mistreatment and for maintaining prisoner health in general. Mr Forrest’s lack of response also undermines the appropriate delivery of Justice Health services.

Justice Health and Forensic Mental Health Network Board

Justice Action sent emails to the following members of the Justice Health and Forensic Mental Health Network Board:

  • Christopher Puplick (Chair)
  • Ken Barker (Deputy Chair)
  • Adrian Bartels
  • Alison Churchill
  • Ian Gillespie
  • Stuart Loveday
  • Michelle Eason
  • Peter Dwyer
  • Shireen Malamoo
  • Professor Terry Campbell
  • Penny Abbott

Justice Action approached these individuals personally in order to initiate a social response to the internal culture of abuse of power that Mr Baker’s case exposes. We have received no responses from any of these individuals except for Ms Malamoo, who directed us to contact the CEO of the Board. We have duly attempted to contact the CEO, however no further replies have been received, as noted above. This Board is charged with implementing a five-year strategic plan for the Network, which is itself responsible for healthcare delivery to individuals involved in criminal justice systems. The Board members’ lack of response to exposed abuse marks a clear dereliction of this responsibility.

Justice Action reached out to Christopher Puplick, the chairperson of the Board. Our email asked him to confront the issues raised by Mr Baker’s case. The email also addressed related failures of the mental health system, citing the refusal to involve prisoner representatives in Board meetings, questioning what response the Board has made to the Full House report and inquiring what other actions have been taken to address the worsening conditions of Prisoner Health Services. Mr Puplick had demonstrated a support for human rights issues throughout his career and accompanied Justice Action in the ACT consultation on the Needle and Syringe Program in 2011. Despite this, Justice Action is disappointed to report that we have received no reply from Mr Puplick.

Community Reference Group

 The Community Reference Group (CRG) is an advisory group that is responsible for reflecting consumer perspectives during decision-making stages of the Justice Health and Forensic Mental Health Network Community. The CRG is comprised of the following members:

  • Jo-Ann Brown
  • Emma Todd
  • Janelle Buncombe
  • Allison Preobrajensky
  • Corinne Henderson
  • Fiona Poeder
  • Kat Armstrong
  • Leanne Willing
  • Rhiannon Cook
  • Susanne Wilkinson
  • Glen Charlesworth
  • Andrea Rocha
  • Gary Forrest
  • Ciara Donaghy

Justice Action sent emails to these members drawing attention to Mr Baker’s case. Few replies have been received to our emails. One of the replies simply concerned a question of confidentiality with no reference to the information and questions asked in our email. We find this appalling response rate disheartening and disrespectful to the people that the CRG ostensibly strive to assist, including Mr Baker. 

Our correspondence can be found here.

Mental Health Advocacy Service

The Mental Health Advocacy Service (MHAS) is a branch of Legal Aid that provides specialist legal assistance in regards to mental health law. Justice Action sent correspondence to both Todd Davis and Robert Wheeler, solicitors for MHAS, on the 20th of July to seek information on resources available for mental health clients who did not have confidence in the MHAS. The response received from the Todd Davis was nothing more than an advisory notice that should legal aid funding be needed, the appropriate form must be completed and submitted. This demonstrates a clear lack of regard for Mr Baker’s case. Justice Action is further displeased to note the lack of response from managing solicitor Robert Wheeler.

Corrective Services NSW

 The Commissioner of Corrective Services redirected a query to Mr Luke Grant, Assistant Commissioner for Corrections Strategy and Policy, requesting for Mr Baker to be returned to Nowra prison. It is now November and Mr Baker is still not in his correct prison of classification despite our persistent requests for Mr Baker to be transported to Nowra prison. He is still held in an unstable environment, without a job or things to do.

Our correspondence can be found here.

Malcolm Baker: Letter to Commissioner

Dear Mr Severin,

We are following up on the ruling made by the Mental Health Review Tribunal on July 14, 2016 regarding Malcolm George Baker min 221029. The Tribunal rejected the application by Justice Health for an order to retain Mr Baker in the mental health facility at Long Bay. We now ask that you facilitate Mr Baker to be transferred back to his designated placement, South Coast Correctional Centre at Nowra. This man has been treated appallingly in the past, once again exposed as being wrong when properly examined.

The hearing was attended by the Directors of Custodial Services Mental Health Drs Perry and Chew as well as the acting head of the treating team Dr Eugene Ho. Justice Health said that if he were on forced medication, he would become less vocal, it would improve his interaction with others and not disturb others at night. The Tribunal heard arguments from Malcolm’s barrister Ben Fogarty, as well as evidence from psychiatrist Dr Yola Lucire and me as designated carer. The Tribunal found no justification for holding him in the hospital and being forcibly medicated. It agreed that Mr Baker presents no risk of serious harm to himself or others. It heard that he needed a job and an interest with social support. His family and Justice Action are beside him.

After a similar hearing by the Tribunal on April 30 last year the Tribunal similarly refused to order his retention in the Long Bay hospital. But subsequently he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him, no job, education and no chance for settling down. It wasn’t fair to him as it was destabilising, especially he has already suffered 15 years in solitary confinement. He wanted to be mainstreamed, do something useful, and create relationships as he should be entitled to after serving 24 years. We counselled him to be patient, speaking with him every few days, believing his return to Nowra to be imminent. Despite this destabilising situation he behaved very well, not being accused of breaching any rules.


In light of the Tribunal’s second decision, we seek support from Corrective Services NSW to resettle Malcolm as early as possible back in Nowra with a job and people around him with whom he can relate. He also needs hearing aids – a matter that was exposed during the latest hearing as the reason for him shouting at night to his friends. We are in a mentoring relationship with him and are prepared to negotiate with him and management if a problem does arise.

Please acknowledge upon receipt,

Kind regards,

Brett Collins
Coordinator

Letter sent to Justice Health

Mr Forrest

Acting Chief Executive

Justice Health and Forensic Mental Network

Dear Mr Forrest,

The Justice Action Team is writing to draw attention to the case of Mr Malcolm George Baker min 221029 and what occurred.

The Tribunal rejected the application by Justice Health for an order to retain Mr Baker in the mental health facility at Long Bay as the Tribunal found no justification for holding him in the hospital and being forcibly medicated. It agreed that Mr Baker presents no risk of serious harm to himself or others. It heard that he needed a job and an interest with social support. He was accused of being delusional as he had alleged corruption between the pharmaceutical industry and the government and said that he was being prosecuted. This was the third time the Tribunal rejected his forced medication after our intervention. This indicates a serious cultural problem in our opinion.

We would like to schedule a meeting with Justice Health in response to the Mental Health Tribunal hearing on 14th July 2016 to examine the failures and look for future solutions so it does not reoccur to him and others.

After a similar hearing by the Tribunal on April 30 last year the Tribunal similarly refused to order his retention in the Long Bay hospital. But subsequently he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him. No job, education and no chance for settling down. It wasn’t fair to him as it was destabilising, especially as he has already suffered 15 years in solitary confinement. He wanted to be mainstreamed, do something useful, and create relationships as he should be entitled to after serving 24 years. We counselled him to be patient, speaking with him every few days, believing his return to Nowra to be imminent. Despite this destabilizing situation he behaved very well, not being accused of breaching any rules.

In light of the Tribunal’s third decision, we seek support from Justice Health NSW to assist Malcolm to returnas early as possible back to Nowra with a job and people around him with whom he can relate. We are in a mentoring relationship with him and are prepared to negotiate with him if a problem does arise. We feel a social response to any tensions that would be treated effective.

Justice Action Team would like to take this opportunity to cooperate with Justice Health in designing an amicable solution for the future. When would suit you for a meeting?

Please acknowledge upon receipt,

Kind regards,

Jessica Chal

Justice Action Team

Letter sent to NSW Legal Aid

To

Mr Robert Wheeler

Mental Health Advocacy Service

Dear Mr Wheeler,

We want to draw your attention to the case of Mr Malcolm George Baker min 221029 and what occurred at his recent Tribunal Hearing on 14/7/16.

The Tribunal rejected the application by Justice Health for an order to retain Mr Baker in the mental health facility at Long Bay as the Tribunal found no justification for holding him in the hospital and being forcibly medicated. It agreed that Mr Baker presents no risk of serious harm to himself or others. It heard that he needed a job and an interest with social support. He was accused of being delusional as he had alleged corruption between the pharmaceutical industry and the government and said that he was being prosecuted

Please find ourmedia release under the email.

The hospital obstructed the defence at all stages. It refused the independent psychiatrist access to the medical records and didn’t release the Review documents until the hearing. The Tribunal claimed that it didn’t have the power to intervene. Dr Lucire pointed out that the tribunal could not deliver justice if one side was prevented from giving proper evidence. “That alone makes the legislation a sham” she said.

The top two Directors of Mental Health in Custodial Services attended the hearing as well as the psychiatrist leading the treating team. The defence was pro bono and privately funded. “There were at least 10 people in the room and the costs of such careless diagnoses need to be sheeted back to those who make them” said Dr Lucire.

Legal Aid NSW had referred us to the Mental Health Advocacy Service. However, Mr Baker felt no confidence in that service from his previous experience. We had no choice but to look elsewhere. We would like to use legal aid financial support for our focus cases as with Saeed Dezfouli. How can we make this process work to allow better outcomes for everyone in the future?

Please be sure that this email is not to criticize the judgment of Legal Aid NSW but rather to support the different approaches needed to create change. What do you think can be done?

Please acknowledge upon receipt,

Kind regards,

Jessica Chal

Justice Action Team.

How many victories are necessary to win

Malcolm Baker found himself back at Long Bay Hospital and was desperate to stop being involuntarily injected. On the 6th July 2016 he was injected again. He was injected with antipsychotic medication although it was known at the time that barrister Ben Fogarty and psychiatrist Dr. Yola Lucire had been briefed to oppose.

Ultimately the hearing on the 24th July 2016 was a success as the Tribunal found that they were not persuaded on the evidence that Malcolm Baker presented a serious risk of harm to himself or others, thus there was no justification for forced medication.

Background of the hearing
On the 8th of June 2016 the Director-General under s 55(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ordered Malcolm Baker to be transferred to the mental health facility at Long Bay Correctional Centre without his consent on the grounds of having a mental illness. He was being held at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater prior to this transfer.

The transfer was challenged at the Mental Health Review Tribunal on the 24th July 2016 by a team of passionate advocates who argued that Malcolm Baker was not a mentally ill person as per the definition in s 14 of the Mental Health Act 2007 (NSW). Malcolm Baker presented himself reasonably to the tribunal. Ultimately the Tribunal found that whilst Malcolm Baker has the symptoms of a mental illness he did not satisfy the definition in s 14 as there was no risk of serious harm to Malcolm Baker or others to make his transfer at and treatment necessary.

Although this outcome is a huge victory for Malcolm Baker, it raises serious concerns about the criminal justice system and its successful deliverance of mental health programs. It was just last year that Malcolm was brought before the Tribunal to answer the exact same question.

Media Release: Mental Tribunal Rejects Prisoner’s Forced Medication, for the Third Time.

Lack of Support

One of the most concerning issues surrounding the circumstances of Malcolm Baker’s hearing before the Mental Health Review Tribunal was the absence of NGO, government and personal support that would otherwise be provided to individuals facing similarly high levels of critical questioning. Individuals and organisations whose role it is to assist vulnerable individuals like Malcolm Baker were nowhere to be seen.

Mental Health Advocacy Service:
In preparation for the hearing Malcolm Baker applied for the assistance of legal aid. On the NSW Legal Aid form, in answer to the question, ‘Do you have a solicitor that you want to represent you and who will agree to accept a grant of legal aid (if it is made)?’ Malcolm Baker provided the details of a barrister he wished to represent him. On the 11th July 2016 Malcolm Baker received a response to his application. He was granted aid but the legal assistance was to be provided by the Mental Health Advocacy Service (MHAS) rather than by the barrister who he had retained for his case. He was told that this was a consequence of the limited resources available to fund private counsel.

This raises a number of concerns. Firstly, it raises doubts about the quality of legal services that would have been provided by the Mental Health Advocacy Service. The implication of the response suggests that the services provided by the MHAS were less and therefore warranted less financial expenditure.

The response fails to consider whether or not the barrister may have accepted whatever grant Legal Aid was prepared to give to cover the retainer. Secondly, it provides yet another impediment to consumer choice – particularly crucial when dealing with issues surrounding someone’s mental health. In these instances it is paramount that the client has someone they can trust represent them. It was later explained that Malcolm Baker had been the recipient of the services of MHAS in the past but did not feel ‘properly supported’ by them.

Justice Action arranged instead to cover the expenses of the retainer for the barrister Ben Fogarty at a reduced rate.

It was then asked whether the legal aid funding allocated for Malcolm Baker could be redistributed to cover the expenses of providing for an independent psychiatrist support, namely Dr Lucire. Retaining a psychiatrist would be ordinary practice of the MHAS and thus an expected expense.

Following the successful result for Malcom, Justice Action reached out to Legal Aid NSW for an explanation as to their denial of Malcolm’s chosen barrister. Justice Action also requested that Legal Aid NSW provide further information so as to ensure this particular outcome did not occur again. This was done to clarify a working relationship that should be beneficial for both Justice Action and Legal Aid NSW. A copy of the letter sent to NSW Legal Aid is available here

Following receipt of the letter, the Mental Health Advocacy Service (MHAS) replied with little concern or empathy for Malcolm’s situation. In their brief reply, they ‘helpfully’ redirected us to an application for Legal Aid funding. Their response did not acknowledge our request for a long-term collaborative effort between our two organisations to improve the delivery of legal services in corrective services, ease of access to appropriate funding and to prevent further violations of well-recognised human rights.

Justice Health:
The fact that this was Malcolm Baker’s third hearing before the Tribunal is concerning. It illustrates there is a cultural problem in Justice Health that attempts to overpower vulnerable people.
The Department also uses their power to forcibly medicate as a management tool rather than speaking to individuals like Malcolm Baker as human beings and addressing problems that lead to his lack of cooperation and opinionated objections.

Throughout the lead up to the hearing Justice Health thwarted Malcolm Baker’s capacity to defend himself. The hospital refused to grant the independent psychiatrist access to Malcolm’s medical records. Access to the Justice Health report was also not available until the hearing.

These actions suggest that not only is Justice Health not serious about providing quality and informed health services to its patients, but that it is willing to stifle efforts for the patients to seek beneficial outcomes for themselves. These recent actions by Justice Health suggest that it is frightened when its own practices are questioned and are worried about being exposed. This leads to a refusal to collaborate with the patients support team.

During the MHRT hearing Malcolm Baker’s designated carer, Brett Collins, made clear that he was happy to assist and be part of the solution including future assistance with problems and negotiating further treatment if and when it is required. We have since reached out to Justice Health seeking to work with them and organise a meeting. A copy of the letter sent to Justice Health is available here.

Being the primary drivers of the application to retain Malcolm in the mental health facility at Long Bay hospital, we look forward to a more detailed response from Justice Health (JH) in regards to our letter. We thank JH for acknowledging that they have received this letter. In their next response, we hope that JH acknowledge and allow our request for a meeting to discuss strategies and policies that can be implemented to avoid wrongful retention of involuntary patients in the future. 

Community Reference Group:
The Community Reference Group (CRG) has also failed to provide assistance. In the past, current prisoners could access meetings of the CRG. Now however, they are excluded. This illustrates that the CRG is no longer making themselves receptive to the people it strives to assist. This sentiment is also evident in the unwillingness of the CRG to respond to topical issues affecting prisoners. This was apparent when they provided no comment to the Inspector of Custodial Service’s Full House Report, which highlighted the overcrowding in NSW correctional centres.

It is suggested that the lack of willingness to be receptive and vocal on prisoner issues stems from a structural problem. The CRG draws it’s funding from government. As a result its actions, and/or lack thereof with regards to the championing of prisoner issues suggests that its status is compromised. A failure to properly critique and provide assessments of government policy is immensely significant as it illustrates an inability to properly serve its purpose.

The letter sent to the Community Reference Group is available here.

Through the advisory role they hold with Justice Health, the CRG must provide information and confront the culture and abuse of power by health personnel. With a significant portion of this abuse concentrated within the prison system, the minimal amount of responses from individual members to the letter can only be described as disheartening. We look forward to receiving more replies from the CRG as we hope to discuss our membership in the CRG. A membership that will be mutually beneficial as we our uniquely qualified to provide valuable insights into the prisoner health system with the experience we have accumulated by working with people such as Malcolm.

Corrective Services NSW:

By not adhering to the ruling of the Mental Health Review Tribunal on the 24th of July 2016, the detainment of Malcolm in the mental health facility at Long Bay, Corrective Services NSW (CSNSW) added to the corruption and abuse of power within the prison system. Following our recent success with transferring Malcolm out of the facility, we followed up with CSNSW to ensure that Malcolm was allowed to return to South Coast Correctional Centre (SCCC) in Nowra.

A copy of the letter can be found here.

We would like to thank CSNSW for promptly acknowledging and replying to our letter. It can be confirmed that over the next couple of months Malcolm will be transferred back into the positive environment at SCCC following a temporary stay at the “mental health step down units at the Metropolitan Remand and Reception Centre.”

‘Under Attack Again’ April 2015

After 23 years of non-violence Malcolm Baker is once again under attack. Having been moved to Long Bay Hospital Prison in February 2015, Malcolm is subjected to conditions tantamount to torture, including forced medication without justification. He is rendered semi-comatose with other severe side effects. See open letter to psychiatrist Dr Simonelli and letter to Tribunal by Malcolm 30/7/2012.  Media release April 30, 2015

Despite being settled in a correctional facility in Nowra and working in a stable job, in February 2015 Malcolm Baker was committed to an indefinite stay at Long Bay Prison Hospital. Two certificates provided the basis for Justice Health to take him to the prison hospital and forcibly inject him. The reason given was that he had sent letters with ideas and drawings to individuals such as Senator Clive Palmer. In addition to this, Justice Health said that the violent nature of Malcolm’s crime in 1992 indicated a present violent mental state.

Justice Action rejects these propositions. The reasons above are not signs of mental illness as defined by the Mental Health Act 2007 (NSW). Baker’s aversion to medication is natural given the terrible side effects he previously experienced being forced to take such medication in 2012. Writing letters to Senator Clive Palmer is not any indication of mental illness; he is a prominent political figure in Australia and writing to him is within the rights of every citizen. The Mental Health Act 2007 section 14 only allows forced medication if the individual is a risk of serious harm to themselves or others. Many prisoners have committed past violent acts, however this doesn't dictate the future. If past acts are accepted as an indication of mental illness, many more prisoners and others will be diagnosed as a risk and medicated.

The Mental Health (Forensic Provisions) Act 1990 (NSW) states that a transfer between correctional centres and/or mental health facilities is only lawful if two certificates are issued by medical practitioners, one of whom must be a psychiatrist. We discovered that a nurse in Nowra had cosigned the certificate, in breach of the requirement. Then on the 4th of March, Brett was denied access to the Long Bay Prison Hospital to appear alongside Malcolm as primary carer for a Tribunal hearing, to present the defence. Denying him access was a clear denial of Malcolm’s right to support. Later they said it was because Justice Health authorities failed to notify the prison as it was required to do.

Currently, Malcolm is being subjected to appalling treatment that is in breach of the basic standards of humanity and dignity as outlined in the Optional Protocol to the Convention Against Torture 2006. He is restrained bi-weekly by prison nurses and forcibly injected with anti-psychotic drugs. They result in him lying down all the time, feeling sick, slurring his words and forgetting words during the sentence he begins, having an abnormal heart rate, itchy skin and negates any sexuality. Malcolm has written a letter stating that the psychiatrist who has misdiagnosed him with a mental illness is also degrading towards him and described him as being paranoid, angry, delusional and having mood swings. Who wouldn't be unhappy?

Media release: Mental Tribunal rejects prisoner’s forced medication, for the third time

IMG_1915.jpg

The prisoner who was accused of being mentally ill for writing to MP Clive Palmer last year, has again successfully opposed the diagnostic formulations of his treating doctors. They had insisted on using enforced medication that his poor metaboliser genotype, tested in 2012, demonstrated that he could not metabolise. This is a landmark victory.

“The adverse effects of the drugs with which he was injected this time and those he was given in the past are described as ‘torture’ in the literature and by the patient. Such drugs were used to torture Soviet dissidents until 1974 because in Russia, people who opposed the government were deemed to be mentally ill under the Russian mental health act. Mr Baker was said to be suffering from delusions because one of the topics in which he has interest and about which he knew quite a bit was corruption in the pharmaceutical industry. He was desperate to stop them injecting him again and having again misdiagnosed him with paranoid schizophrenia” said psychiatrist Doctor Yola Lucire.

Justice Health said that his ideas made him vulnerable to attack from other prisoners and the medication would make him less vocal. The hospital had already held him down and injected him with antipsychotic medication although they knew barrister Ben Fogarty and psychiatrist Yolande Lucire had been briefed to oppose them in a hearing a few days later.

The Tribunal found no justification for holding Mr Baker in the hospital and being forcibly medicated. It agreed that Mr Baker presented no risk of serious harm to himself or others. It heard that he needed a job, an interest and stability. It ordered that he be removed from the hospital.

The certificates that brought Mr Baker before the Mental Health Review Tribunal were signed by two doctors who did not speak to the patient, did not disclose that fact, and did not appear at the Tribunal hearing. Evidence was given by others only one of whom had had any contact with the patient and who appeared to offended by Mr Baker's topics of conversation but did not appear to challenge his beliefs. None of those paid to monitor health delivery helped him or other prisoners. Not the Board, Legal Aid, nor the Board running the Community Reference Group. It is a disgraceful culture that they have developed, but Health has the money to buy everyone.

“Small wonder that bed requirements in NSW for the forensic patient population nearly trebled between 1992 and 2003 to accommodate a misdiagnosed population who are treated with drugs they cannot metabolise and have no possibility of recovery. This has all increased with new drugs whose side effects our doctors do not recognize” said Dr Lucire.

The hospital obstructed the defence at all stages. It refused the independent psychiatrist access to the medical records and didn’t release the Review documents until the hearing. The Tribunal claimed that it didn’t have the power to intervene. Dr Lucire pointed out that the tribunal could not deliver justice if one side was prevented from giving proper evidence. “That alone makes the legislation a sham” she said.

The top two Directors of Mental Health in Custodial Services attended the hearing as well as the psychiatrist leading the treating team. The defence was pro bono and privately funded. “There were at least 10 people in the room and the costs of such careless diagnoses need to be sheeted back to those who make them” said Dr Lucire.

During the hearing the Tribunal asked: “What would you like the doctors to do for you?” Mr Baker responded, “Just leave me alone.” Later in the hearing the Tribunal discovered that he had been shouting out at night. The 69 year old is deaf in his left ear and 25% in his right. The hospital was asked if they would fit aids for him. “After 24 years!".

For 15 of his 24 years in jail, Mr Baker had been held in effective solitary confinement in super max despite the fact that he has never been aggressive or violent in hospital although he had some adverse drug reactions when forced to take a drug associated with suicide and homicide. He had been moved from cell to cell every four weeks, and denied stability. When out of his unit, he was put in leg irons and handcuffs. He was assaulted several times when his possessions smashed while guards watched. He was told he was mentally ill and was forcibly medicated despite his requests that he be left in peace, have a job and mix with others.

After a similar hearing by the Tribunal on April 30 last year, the Tribunal ordered his removal from the hospital. But he was held in the mental health pod of the MRRC for 15 months, with a series of unstable people in transition around him, no job, education and no chance for settling down. He was set up to fail – but didn’t.

We have asked Commissioner Peter Severin to return Malcolm to Nowra.

Malcolm Baker

malcolm baker photo for website update

LATEST NEWS

Latest summary on Malcolm Baker tribunal hearing
Malcolm Baker Forcibly Injected Again: January 2018
Report on Medical Watchdogs' Failure: October 2016
Request to Return to Nowra: November 2016
Victory - Tribunal in Favour: July 2016

OVERVIEW
Malcolm Baker was sentenced to natural life imprisonment in 1993 for the murder of 6 people including his own son, in the space of 50 minutes, after discovering his partner with another man. He gave himself up and pleaded guilty. He has been incarcerated for 24 years, 15 of which have been served in effective solitary confinement in the High Risk Management Unit in Goulburn Correctional Centre, although he has been a model prisoner. No-one will explain why he was held there under those conditions, but police were related to victims. People who meet Malcolm appreciate him as a person, with friendly eyes and a gentle manner. He has nine children and other family who love him.

A comprehensive overview of Malcolm’s background, offences, court proceedings and convictions can be found here.

See Malcolm Baker's Full Profile

HISTORY

- 2015: Under Attack Again' April 2015
After 23 years of non-violence Malcolm Baker is once again under attack. Having been moved to Long Bay Hospital Prison in February 2015, Malcolm is subjected to conditions tantamount to torture, including forced medication without justification. He is rendered semi-comatose with other severe side effects. See open letter to psychiatrist Dr Simonelli and letter to Tribunal by Malcolm 30/7/2012.  

See Media release April 30, 2015

2014: Malcolm was moved from Goulburn to the South Coast Correctional Facility in Nowra, where he demonstrated an ability to successfully socialise into the general prison population. However, in February 2015, Malcolm was given an unfair focus and was moved to Long Bay Prison Hospital to be forcibly given mental health treatment despite inadequate justification.

- 2012: Malcolm was issued a Community Treatment Order (CTO) by the Mental Health Tribunal legally enforcing him to take medication. This CTO expired on the 7th of August 2012. However, both Malcolm and Justice Action were not notified that his CTO had been discontinued until February 2014 and consequently, Malcolm continued to take and suffer from unnecessary medication without any notice from Justice Health. Moreover, Malcolm continued to be held in an A1 High Risk Security Prison even though he no longer required a CTO and had been acknowledged as displaying calm and cooperative behaviour by health and prison records.

GENERAL ISSUES

Forced Medication 
Community Treatment Orders  

RELATED CAMPAIGNS and DOCUMENTS

An Open Letter to the Long Bay Treatment Team
Malcolm Baker's letter to the Mental Health Review Tribunal
Malcolm Baker – A Breach of the Torture Convention

 

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E ja@justiceaction.org.au
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